There are more employment judges who sit alone

Reforms that came into effect this week will see more judges sitting alone at hearings before the Employment Tribunal.

The senior president of tribunals, Sir Keith Lindblom has written a practice direction for the composition of panels at both employment tribunals as well as employment appeal tribunals. This means that fewer cases are heard by a panel of three people consisting of a judge and two members of the public.

The directive that came into effect on 29th October states that the judge will determine, “having in mind the interests of justice and overriding objectives”, whether an employment court is composed of a single judge or of a panel consisting of a member from each party: a member representing the employee and a member representing the employer.

The document also states that a case brought before the EAT will be heard by a single judge, unless a court decides otherwise, in the interest of justice or the primary objective.

After consultation with employers’ and employee’s associations or organisations, non-legal members are appointed independently to the judicial office.

The judge who is the chair of the panel will be able to use their knowledge of workplace practices, norms and challenges in order to inform his legal analysis. It is important to understand the reality of modern workplaces and industrial practices in order to make informed decisions.

The “overriding goal” is to treat cases fairly and justly. This includes, where possible: ensuring the parties are treated equally; handling cases in a manner that is proportionate to their complexity and importance; avoiding unnecessary formalism and seeking flexibility; eliminating delay; and avoiding expense.

Guidance from Judge Barry Clarke and Judge Susan Walker in Scotland said that panel composition would vary depending on the case. “They do not have to lead to an inevitable conclusion, but it is up to the judge to decide the composition that furthers justice and accords to the overriding goal.”

The experts added that other factors are: “On a more practical level, availability of members who can sit in on the case and how long the hearing will last (which could correlate with the length) as well as the potential for delay if the full tribunal is appointed.”

According to the latest Ministry of Justice statistics, between April and June 2024 the number of cases pending in the courts increased by 18%.

Richard Atkinson, president of the Law Society, told the Law Gazette that “we support improvements which maximize the ability to use judicial resources.” Our primary concern, however, is to ensure that the increasing backlog of employment tribunals is addressed so that both workers and employers are able to protect their rights and have access to justice.

The Employment Rights Bill is a bill that aims to give workers new employment rights, and remove barriers to enforcement. Workers who cannot access employment tribunals on time will not benefit. “Investing in employment tribunals will be crucial if the government is to achieve the desired outcomes.”

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